On the origins of the Canadian Senate

01/03/201214/02/2013

A reader queried as to the origins of the Canadian Senate – why was it decided that the upper chamber should be unelected, why is it based on regional representation rather than equal provincial representation, etc.

According the paper’s author(s), the upper House was critically important to those negotiating Confederation. Back in the 1800s, all of the British North American colonies, except British Columbia, were bicameral – meaning they had two chambers, a legislative assembly and a legislative council. The legislative councils were the model for the Senate. The paper notes that much of the Quebec Conference of 1864 was devoted to the creation of an upper house. The Conference lasted 14 days, and six of those 14 days were devoted to discussions of the second chamber.

There was discussion of having the second chamber elected, which was the position favoured by the representatives from Prince Edward Island. The PEI Legislative Council had been elective since 1862, and that of the Province of Canada (the union of Upper and Lower Canada) since 1857. However, this was not the popular option for one important reason – the elected second chambers “tended to be a second edition of the assembly, and because small in numbers and composed for the most part of citizens who had already made their mark in life, it might in the end have overshadowed the assembly, just as the Senate in the United States has overshadowed the House of Representatives.” (quote from Professor Robert MacKay, The Unreformed Senate of Canada, p. 31)

The resolutions adopted at the Quebec Conference on 10 October 1864 on the Senate stipulated, among other things, that for the purposes of the Legislative Council (what would become the Senate), the federated provinces would be composed as three “Divisions” 1) Upper Canada, 2) Lower Canada, 3) Nova Scotia, New Brunswick and Prince Edward Island, and each Division would have an equal representation of 24 Members each. There were also provisions for Newfoundland, British Columbia and the “North Western Territory”. Other resolutions established that the Members of the Council would be appointed for life by the Crown, and set out the qualifications for appointment to the Council.

What is perhaps the most interesting part of the paper are the excerpts from the Confederation Debates on the Quebec Resolutions which demonstrate their views on the decision to choose an appointed chamber over an elected upper House. Some examples:

Mr. Belleau, (Legislative Councillor): ” … the elective principle, as applied to the Legislative Council, becomes unnecessary in view of the numerical strength of Lower Canada in the federal Parliament, for the House of Commons is the body that will make and unmake ministers. Why have the elective principle for the Legislative Council, since we shall have it for the House of Commons, since we shall have a Responsible Government, composed of Members elected by the people?”

Sir E.P. Taché, (Legislative Councillor): “When the gentlemen who composed the (Quebec) Conference met, they had to lay down on a broad basis, as it were, for the foundation of the superstructure. Well, it so happened that the cornerstone was that which concerned the representation in both Houses. It was agreed on the one hand that in the House of Commons of the Confederate government representation should be according to numbers, and in the other branch of the Legislature it should be fixed that this representation should be equal for all the provinces – that is to say Upper Canada, Lower Canada and the Maritime Provinces, grouped into one, should each be allowed to send the same number of representatives, so as to secure to each province its rights, its privileges, and its liberties.”

George Brown, (Member of the Legislative Assembly): ” … It has been said that members of the Upper House ought not to be appointed by the Crown, but should continue to be elected by the people at large. On that question my views have been often expressed. I have always been opposed to a second elective chamber and I am so still, from the conviction that the two elective Houses are inconsistent with the right working of the British parliamentary system … [W]hen the elective element becomes supreme, who will venture to affirm that the Council would not claim that power over money bills which this House claims as of right belonging to itself? Could they not justly say that they represent the people as well as we do, and that the control of the purse strings ought, therefore, to belong to them as much as to us. It is said they have not the power. But what is to prevent them from enforcing it?”

Regarding the representation of each province in the Senate I will cite from the study directly:

(…) the Senate’s composition reflects both provincial and regional representation. As John A. MacDonald stated in the Confederation Debates, the principle of equality in the Upper House was “to protect local interests and to prevent sectional jealousies”. MacDonald saw the British North American colonies as three great sections – Ontario, Quebec and the Maritimes, each with different economic interests. It was on the basis of regional equality and not provincial equality that Senate representation was agreed to.

i) Quebec and Ontario – The only feasible scheme for the union of the British North American colonies in 1867, Professor MacKay writes “was a federal state in which Lower Canada (Quebec) should be protected in all its rights. Lower Canada must be a willing partner to any scheme of union since geographically it held the key to any union with the Maritime Colonies. And it could only be a willing partner by the grant of absolute guaranties for the protection of its institutions, its language, its religion, and its laws guarantees that must be clearly evident to all”.(MacKay, p. 34) Quebec was given equal representation in the Senate with Ontario – twenty-four seats. Section 24 of the Constitution Act, 1867 provided for a special representation in the case of Quebec: “each of the twenty-four Senators representing that Province shall be appointed for one of the twenty-four electoral districts of Lower Canada … “. These districts are specified in Schedule A to Chapter One of the Consolidated Statutes of Canada (1859).

ii) Nova Scotia, New Brunswick and Prince Edward Island – The original agreement adopted at Quebec City in 1864 by the Fathers of Confederation stated that Nova Scotia would have ten Senators, New Brunswick ten and Prince Edward Island four. The record of the discussions which took place at the Quebec Conference shows that the Prince Edward Island delegates argued vigorously that the only safeguard the smaller Provinces would possess was in the Senate and raised the demand for equal representation for all the provinces in the Upper House. This position, MacKay writes “was farther than other Maritime delegations were prepared to go”.(MacKay, p. 37) P.E.I. alone dissented from the Quebec agreement and refused to come into the new federation. In order to retain the equality of sectional representation, the twenty-four maritime members were divided equally between New Brunswick and Nova Scotia. When Prince Edward Island entered Confederation pursuant to the Prince Edward Island Terms of Union, 1873, it did so on the terms and conditions of the Quebec resolutions. Senate representation was therefore readjusted to ten Nova Scotia seats, ten New Brunswick seats and four from P.E.I.

iii) Newfoundland – The Fathers of Confederation regarded Newfoundland as a distinct region and its representation in the Upper Chamber an exception to the condition of equality. Sir John A. MacDonald felt the province “had an interest of its own … It, therefore, has been dealt with separately, and is to have a separate representation in the Upper House, thus varying from the equality established between the other sections”. Newfoundland entered Confederation only in 1949, pursuant to the Newfoundland Act, which confirmed the Terms of Union between the province and Canada. The Terms of Union provided for representation in the Senate by six members.

iv) Manitoba, Saskatchewan, Alberta and British Columbia – The Quebec Resolutions stated that “the North Western Territory, British Columbia and Vancouver shall be admitted into the Union on such terms and conditions as the Parliament of the Federated Provinces shall deem equitable”. The Manitoba Act, 1870 provided that it shall “be represented in the Senate of Canada by two Members, until it shall have, according to decennial census, a population of fifty thousand souls, and from thenceforth it shall be represented therein by three Members, until it shall have, according to decennial census, a population of seventy-five thousand souls, and from thenceforth it shall be represented therein by four Members”. The British Columbia Terms of Union, 1871 stipulated that the province would be represented in the Senate by three members. The Alberta Act, 1905, and the Saskatchewan Act, 1905 each provided for four Senators with a proviso added “that such representation may, after the completion of the next decennial census, be from time to time increased to six by the Parliament of Canada”. By the Constitution Act, 1915, the West became recognized as a distinct section and was allotted a representation of twenty-four members equally with the other sections, six Senators being assigned to each of the four western provinces.

v) The Northwest Territories and the Yukon Territory – Pursuant to the Constitution Act, 1975, the two territories were entitled to be represented in the Senate by one member each. Like the Province of Newfoundland, they were not added to an existing region but treated as an exception to the sectional divisions.

vi) The Nunavut Act of 1993 separated the new Territory of Nunavut from the Northwest Territories and granted it representation in the Senate by one member.

Again, I urge you to read the entire paper as it contains much more information about the origins of the Senate, including a discussion of its functions.

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